ESB procedure for serving notice of works ruled unlawful

Decision by Court of Appeal to have significant effect on way wayleave notices are served

 

The Court of Appeal has ruled that a procedure under which the Electricity Supply Board served a notice to enter private lands to carry out works on electricity lines is unlawful.

The three judge court upheld an appeal by Killross Properties Ltd over the legality of a wayleave notice authorising temporary entry onto the company’s lands in Co Kildare as part of planned upgrading works to electricity lines.

In a significant unanimous judgment, the court agreed with Peter Bland SC, for Killross, the procedure used by the ESB for serving wayleave notices under Section 53 of the Electricity Supply Act 1927 on his client involved an unlawful delegation of the board’s powers under Section 9 of the Act.

The board was entitled to delegate the power to issue wayleave notices to its chief exective but was not entitled to “sub-delegate” to the chief executive power to authorise such other persons as he deemed appropriate to issue wayleave notices, Mr Justice Brian Cregan held. Any such persons had to be directly authorised by the board.

Mr Justice Cregan, with whom Mr Justice Michael Peart and Mr Justice Gerard Hogan agreed, said the wayleave notice was served by a person “who had no lawful authority to do so”.

The wayleave notice served by the ESB on June 28th, 2013 on Killross was signed by Eoin Waldron, described as an authorised officer of the board.

Mr Waldron was not authorised by the board but rather authorised by the chief executive, Mr Justice Cregan said. That authorisation was in excess of the provisions of Section 9, the way leave notice was thus served unlawfully and must be set aside.

Upgrading works

On that ground, the court allowed the appeal by Killross, with registered offices at Celbridge, Co Kildare, over a wayleave notice permitting the ESB and Eirgrid enter onto the firm’s lands at Collinstown, Co Kildare, to erect a temporary diversion to the Dunfirth-Kinnegad-Rinawade 110kv electricity line as part of line upgrading works.

Killross bought the lands in 2007 and they were re-zoned in 2010 for use as a town centre development.

Killross claimed it bought the lands from the previous owner with benefit of existing representations from the ESB it would divert electricty lines to facilitate the town centre development then being contemplated, or else pay compensation. The ESB denied any such representation. That dispute was not an issue before the Court of Appeal.

Following High Court orders, the ESB entered onto the lands in March 2015 to erect the temporary line and completed the works, and removed the temporary line, by August 2015.

Unanimous judgments

Yesterday ( Monday), the Court of Appeal issued three unanimous judgments on various issues arising for the dispute between the ESB, Eirgrid plc and Killross concerning the works. The appeal court upheld Killross’ claim concerning unlawful delegation of powers but dismissed all other claims.

Giving the other two judgments, Mr Justice Hogan said it was important to note Killross had not challenged the constitutionality of Section 53 of the 1927 Act which meant the court could not address whether that was valid or not.

He dismissed Killross’ claims the wayleave notice was issued in breach of fair procedures or had certain defects on its face rendering it invalid.

He also rejected claims the upgrading of the capacity of six electricity lines in the east Kildare area was unauthorised development requiring separate planning permission. Those works did not affect the 110kv voltage of the lines, he noted.

The High Court correctly found it could not, in proceedings under Section 160 of the Planning Act 2000, go beyond otherwise valid decisions of the planning authorities those works were exempt development, he held.